September 27, 2017
To become lawyers, candidates generally spent at least three years in law school, pass a bar examination, and have their backgrounds and character examined during a rigorous admissions process. The vetting is designed to protect the public from incompetent and harmful legal assistance and to preserve the integrity of the profession. The idea that people would attempt to handle legal matters for others without authorization is dangerous. This type of activity, however, occurs with a degree of frequency. This article explores what is being done by the Attorney Registration and Disciplinary Commission to combat the problem and how the courts may be involved. The role of the Commission is enumerated in Supreme Court Rule 779, which became effective on December 7, 2011.
There is no exhaustive list of the activities that amount to the practice of law in Illinois. Our Supreme Court has defined the practice of law as “…the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.” People v. Schafer, 404 Ill. 45, 87 N.E.2d 773 (1949). The reasons for the Supreme Court’s involvement in prohibiting the unauthorized practice of law was made clear in People ex rel. Chicago Bar Ass’n v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937). In Goodman, the Court said, “….[t]he power is inherent in this court to prescribe regulations of the study of law and the admission of applicants for the practice of that profession….It follows, as an incident to such power, that this court has jurisdiction to discipline or disbar, for cause, attorneys licensed by it. It would be an anomalous situation if a layman actively engaged in the practice of law, in defiance of the requirements necessary therefore announced by this court, could stay the hand of the court from suppressing his illegal acts.” In 2011, the Supreme Court delegated UPL enforcement authority to the ARDC under Rule 779.
This publication does not attempt to explore the margins of what is or is not practicing law, and the ARDC does not typically take enforcement action in fringe cases. The Commission’s resources are utilized when the acts of non-attorneys fall squarely within the Court’s definition. Such situations include, among many things, non-attorneys appearing in court and advocating on behalf of others, drafting pleadings and legal documents for others, and falsely holding themselves out to be licensed attorneys.
Allegations against non-attorneys for engaging in the unauthorized practice of law (“UPL”) come to the attention of the ARDC in the same manner that attorney grievances do. The purported clients often complain that the person assisting them with their legal matter committed misconduct. Sometimes, complainants have already discovered that their representative is not an attorney, and other times, they complain about a person they believe to be a lawyer. Attorneys also report their concerns after attempting unsuccessfully to verify an individual’s licensure to practice through the ARDC website at www.iardc.org. Although judges may detect a UPL offense during a court proceeding, and they have to the power to immediately sanction the perpetrator for direct contempt of court, they also make referrals to the ARDC in such matters.
Lastly, government agencies like the Attorney General’s office or the county prosecutors may make referrals to the ARDC when they decide not to act upon reports in this type of matter. In 2016, the ARDC docketed 113 UPL investigations. Of those, 97 related to unlicensed persons or entities practicing law. (The balance related to suspended, disbarred, or out-of-state attorneys.) The ARDC attempts to resolve these matters short of formal action by agreement, and, if possible, to obtain restitution for the victims of the UPL. The allegations directed to the ARDC attention range from consultants, advisors, paralegals, and law students handling matters without authorization, to fraudsters posing as attorneys, taking money, or handling legal claims for others. Last year, the fields of practice with the highest concentration of UPL were real estate (including landlord/tenant and foreclosure cases), contract, domestic relations, and immigration.
When the ARDC Administrator believes that formal action against a non-attorney is warranted, Rule 779(b) requires a referral to an Inquiry Panel at the Commission. Inquiry Panels determine whether formal complaints should be filed, much like a grand jury in a criminal case. Once a panel votes to file a complaint, it is filed in the circuit court where venue would be proper under 735 ILCS 5/2-101. During 2016, the Administrator filed seven different formal UPL complaints in court. Complaints filed by the Administrator usually allege two different types of charges; a common law indirect criminal contempt charge and a violation of the Illinois Attorney Act, 705 ILCS 205/1. The courtrooms that hear such cases vary by county. Some counties assign the cases to criminal judges, while others designate chancery courtrooms to adjudicate the matters. Because the cases involve criminal contempt allegations, punishable by incarceration, the defendants have constitutional rights, including the right to counsel and trial by jury. In the cases previously filed by the ARDC, the Administrator has obtained sentences that included periods of supervision, probation, and incarceration, as well as fines, restitution, and permanent injunctions prohibiting further UPL. Since the Attorney Act allows for civil penalties of $5,000 per incident, payable to the Illinois Equal Justice Foundation, judgments with those sanctions have also been entered in ARDC UPL cases.
To be clear, the ARDC is not the only player when it comes to UPL enforcement actions. The Attorney General’s office has wide-ranging authority to pursue claims against UPL offenders under a number of different statutes. State’s Attorney’s offices also have the ability to formulate criminal charges for theft or False Personation of an Attorney, 720 ILCS 5/17-2, among other things. Finally, the Attorney Act provides standing for attorneys and bar associations to bring claims against those that practice law without authorization, although such actions require expenditure of considerable time and resources. Both the Chicago Bar Association and the Illinois State Bar Association (“ISBA”) have had significant historical roles in bringing UPL cases, and the ISBA Task Force on the Unauthorized Practice of Law is still extremely active in UPL matters. Where other agencies have taken action, the ARDC will usually defer to those entities, and in matters involving a perceived encroachment on tasks traditionally handled by attorneys, the bar associations may pursue relief, but the ARDC will usually not be involved. To help prevent the devastating consequences for the public at large from UPL, however, the ARDC is authorized and ready to take action pursuant to Rule 779.